THE  PEOPLE  OF  THE  STATE  OF  NEW  YOKK 


Appellants \ 


against 


JAMES  H.  INGERSOLL, 


IMPLEADED  WITH  WILLIAM  M.  TWEED,  ELBERT  A.  WOOD- 
WARD  AND  ANDREW  .J.  OARVEY, 

Respondent. 


On  Appeal  from  Judgment  sustaining 

Demurrer. 


ON  RE-ARGUMENT. 


william  fullerton, 
'eliiiu  root, 

Of  Counsel. 


NEW   YORK : 
JOHN   POLHEMUS,  PRINTER,  102  NASSAU  STREET. 


1874. 


\ 


/ 


Court  of  3ppcak 


The  People  of  the  State  of  New  York 
against 

James  H.  Inoersoll,  impleaded  with 
William  M.  Tweed,  Elbert  A.  Wood- 
ward and  Andrew  J.  Garvey. 


ADDITIONAL  POINTS  FOR  DEFENDANT, 
UPON  THE  ARGUMENT  OF  THE  PLAIN- 
TIFF'S APPEAL  FROM  THE  JUDGMENT  SUS- 
TAINING THE  DEMURRER  TO  THE  COM- 
PLAINT. 

It  is  the  object  of  this  argument  to  meet  certain  objec- 
tions which  are  made  by  the  Attorney-General  to  an 
affirmative  answer  to  the  questions  proposed  by  the 
Court,  and  certain  suggestions  which  the  Attorney-Gen- 
eral makes  by  way  of  avoidance  of  such  questions. 

These  objections  and  suggestions  are  : 

First. — That  the  money,  which  is  the  subject  of  this 
controversy,  never  was  lawfully  in  the  Treasury  of  the 
County  of  New  York. 

Second. — That  the  County  of  NewT  York  had  not  the 
power  of  disposition  of  this  money. 


Third. — That  only  an  "  undefined,  unknown  and  un- 
ascertainable  class  of  individuals,"  who  will  be  the  tax- 
payers of  New  York  at  some  distant  future  time,  are  the 


/ 


2 


parties  injured  by  the  acts  complained  of,  and  that  they 
are  represented  only  l>y  the  State. 

Fourth. — That  there  is  an  independent  right  in  the 
Attorney-General  to  bring  this  action,  whether  the  County 
bring  it  or  not. 


FIRST. 

It  is  said  by  the  Attorney-General  that  the  money  in 
question  was  illegally  and  improperly  paid  into  the 
treasury  of  the  County  by  the  Comptroller. 

To  this  we  answer : 

I.  — The  complaint  alleges,  "  That  tin-  money  in 

"question  was  in  formal  compliance  with  the 
"  statutes  and  usual  modes  of  official  proa  eding 
"in  said  city deposited  in  the  National  Broad- 
" way  Bank,  in  thi  City  of  New  )'>>r/,\  to  the 
"credit  of  an  account  therein  Lej>t  by  the 
"Chamberlain  of  the  City  of  New  York,  as 
"County  Treasurer  of  thi  x<t'i<l  Con nty,  by 
"  rift  in  of  hi*  said  official  character  as  such 
u  ( hcwnberlain" 

This  being  an  allegation  of  a  fact  in  the  com- 
plaint, it  must  he  taken  as  true  on  the  argu- 
ment of  this  demurrer. 

II.  The  law  required  the  money  in  question  to  he 
paid  into  the  treasury  pf  the  County  as  it  was 

paid. 

The  following  statute  contain  the  provisions  of 

law  under  which  this  money  was  paid  into  the 

County  Treasury,  and  under   which   it    \va>  to  he 

paid  out  by  the  Comptroller,  as  directed  by  the 
law  of  ls7". 


I.  Chapter  &7  ol  the  lawi  of  1  $62,  section  2','prc*- 


3 


vides  :  u  That  moneys  borrowed  upon  the  re 
"  venue  bonds  of  the  County  of  New  York  shall 
"  be  deposited  by  the  parties  lending  the  same 
"  in  the  County  Treasury." 

II.  Chapter  623  of  the  laws  of  1865,  section  L, 

provides :  "  That  all  revenue  of  the  City  and 
"  County,  of  every  kind,  shall  be  deposited  in 
"  certain  banks  in  the  City  of  New  York  to  be 
"  designated  by  the  Chamberlain." 

III.  Chapter  137  of  the  laws  of  1870,  article  5, 
section  37,  provides  (under  the  head  of  "  Finance 
Department ") :  "  For  a  bureau,  the  chief  officer 
"  of  which  shall  be  called  the  Chamberlain,  for 
"  the  reception  of  all  moneys  paid  into  the 
*'k'  treasury  of  the  city,  and  for  the  payment  of 
"  money  on  warrants  drawn  by  the  Comptroller, 
"  and  countersigned  by  the  Mayor." 

IV.  Chapter  590  of  the  laws  of  1857,  section  6, 
provides :  "  That  the  Finance  Department,  the 
"  Mayor,  Aldermen  and  Commonalty  of  the 
"  City  of  New  York,  and  its  officers,  shall  have 
"  the  like  powers  and  perform  the  like  duties  in 
"  regard  to  the  fiscal  concerns  of  the  Board  of 
"  Supervisors,  as  they  possess  in  regard  to  the 
"  fiscal  concerns  of  the  Mayor,  Aldermen  and 
"  Commonalty,  and  that  no  moneys  shall  be 
"  drawn  from  the  Treasury  of  the  County,  ex- 
"  cept  on  a  warrant  drawn  by  the  Comptroller, 
"  and  countersigned  by  the  Clerk  of  the  Board 
" of  Supervisors" 

V.  The  Eevised  Statutes,  vol.  1,  page  370,  1  Ed., 
sec.  29,  provides  :  "  That  the  Chamberlain  of  the 
"  City  and  County  of  New  York  shall  be  con- 
"  sidered  the  County  Treasurer  thereof." 

Section  22  of  the  same  article  provides  : 
"  That  it  shall  be  the  duty  of  the  County 
"  Treasurer  to  receive  all  moneys  belonging  to 
"  the  County,  from  whatever  sources  they  may 
"  be  derived." 


4 


It  follows,  from  the  statute  above  cited,  that  it 
was  the  duty  of  the  Chamberlain,  as  County  Treas- 
urer, to  receive  the  money  in  question  in  his  official 
capacity,  and  that  the  only  manner  in  which  this 
money  could  be  paid  out  of  the  Treasury  was  by  the 
Comptroller,  as  directed  in  section  4  of  chapter  3S2 
of  the  laws  of  1870;  and,  also,  that  the  only  way 
in  which  the  Comptroller  could  pay  the  amounts 
found  to  be  due,  as  he  was  directed  to  do  by  this 
section  of  the  Act  of  1870,  was  by  a  warrant  drawn 
on  the  County  Treasurer.  The  Comptroller  had  no 
power  to  fulfil  the  injunction  of  the  statute  of  1870, 
cited  by  the  Attorney-General  as  showing  that  he 
had  the  money  in  question,  in  any  other  manner 
than  by  drawing  a  warrant  upon  the  County  Treas- 
urer. 

The  County  Treasurer,  therefore,  must  have  had 
the  money,  and  not  the  Comptroller. 


SECOND. 

It  is  said  that  the  County  had  no  power  to  use  the  money 
in  question  when  it  had  it,  and  would  have  none  if 
it  recovered  it  again. 

The  first  section  of  this  very  chapter  382  of  the 
laws  of  1870  provides:  "  That  from  the  amounts 
u  which  the  Board  of  Supervisors  are  authorized  to 
"  raise  by  taxation,  shall  be  deducted  the  aggregate 
"amount  of  the  estimated  revenues  of  the  County, 
"for  the  year  1870,  not  otherwise  specifically  appro- 
u  priated  by  law." 

So  that  it  appears  by  this  section,  that  there  were 
to  be  in  the  treasury  of  the  County  for  the  pay- 
ment of  the  amounts  authorized  to  be  paid  by  the 
Act,  two  classes  of  moneys. 

First:  Those  received  from  the  revenues  of  the 
County. 


5 


Second  :  Those  raised  by  taxation. 

The  moneys  so  received  from  the  regular  revenues 
of  the  County  were  applicable  to  the  payment,  and 
were  intended  to  be  applied  to  the  payment  of  any 
of  the  debts  authorized  to  be  paid,  without  any  dis- 
tinction between  the  different  moneys  in  the  treasury 
arising  from  different  sources. 

This  is  conclusive  in  favor  of  the  position  of  the 
defendants  that  the  county  can  pay  any  debts  which 
it  is  authorized  to  pay  out  of  any  moneys  which  it 
has,  not  otherwise  specifically  appropriated,  and  that 
all  moneys  paid  into  the  treasury  lose  their  identity 
and  become  merged  in  the  common  account. 

If  a  valid  claim  had  been  audited  and  certified 
under  this  Act  of  1870,  and  presented  to  the  Comp- 
troller for  payment  he  could  have  paid  it,  and  it 
would  have  been  his  duty  to  pay  it ;  if  there 
had  been  funds  in  the  County  Treasury  derived 
from  any  source  whatever,  not  otherwise  specifically 
appropriated,  whether  the  amount  had  been  " pro- 
vided for"  by  the  issue  of  revenue  bonds,  or  re- 
mained to  be  thereafter  "  provided  for  "  by  the  issue 
of  such  bonds.  The  Statute  does  not  say  that  the 
moneys  to  be  paid  shall  be  "  provided,"  but  it  is  that 
the  amounts  found  to  be  due  shall  be  "provided 
for  "  by  the  issue  of  revenue  bonds. 

This  would  be  satisfied,  as  well  by  the  issue  of 
bonds  after  payment  by  the  Comptroller,  out  of  the 
unappropriated  moneys  in  the  Treasury,  as  by  an 
isssue  of  bonds  before  payment. 

The  funds  raised  by  the  issue  of  revenue  bonds  to 
provide  for  the  amounts  found  to  be  due,  became, 
whether  such  amounts  had  been  paid,  or  were  there- 
after to  be  paid,  but  a  part  of  the  general  fund  in 
the  County  Treasury,  not  distinguished  or  distin- 
guishable from  any  other  moneys  in  the  treasury,  and 
under  the  control  of  the  county  for  all  lawful  ob- 
jects. 


6 


THIED. 

It  is  said  that  "  the  real  and  only  injury,  unless  to  the 
"  State,  was  to  that  undefined,  unknown  and  unas- 
"  certainable  class  of  individuals,  who,  at  some  un- 
"  known  period,  were  to  be  assessed  under  the 
"  tax  laws  for  the  payment  of  these  bonds  ; "  and 
that "  when  the  wrong  was  perpetrated,  and  this  ac- 
"  tion  commenced,  they  may  have  been  all  foreign- 
"  ers  or  unborn,"  and  therefore  it  is  urged  that  the 
Supervisors  of  the  county  of  New  York  have  no 
right  to  recover  the  money  in  question. 

The  untenable  character  of  this  argument  will 
readily  be  perceived,  when  we  consider  the  constitu- 
tion of  the  body  of  citizens  inhabiting  the  county, 
or  who  are  liable  to  pay  the  taxes  assessed  upon  those 
living  within  its  limits. 

It  seldom  or  ever  occurs,  in  the  very  nature  of 
things,  that  all  of  the  tax-payers  of  a  county  derive 
benefit  from  the  taxes  which  they  pay.  Every  year, 
month  and  week  witnesses  a  change  in  the  body  of 
tax-payers.  People  move  in  the  county  of  New  York 
to-day,  and  become  liable  to  taxation  for  the  pay- 
ment of  debts  contracted  years  gone  by,  and  from 
which  they  derive  no  benefit. 

Many  who  pay  taxes  to-day  will  cease  to  be  inhab- 
itants of  the  county  before  the  money  is  expended 
for  any  purpose  from  which  they  can  derive  any  ad- 
vantage. 

The  law  takes  no  notice  of  these  constant  and 
necessary  changes. 

The  Board  of  Supervisors  are  organized  as  a  body 
corporate,  and  represent  the  county  itself.  They  have 
the  capacity  "  to  sue  and  be  sued ;"  u  to  purchase  and 
"  hold  lands  for  the  use  of  its  inhabitants  "  to 
"  make  such  contracts,  and  to  purchase  and  hold 
"such  personal  property  as  may  be  necessary  to  the 
"  exercise  of  its  corporate  or  administrative  powers 


7 


"  to  make  such  orders  for  the  disposition,  regulation, 
"  or  use  of  its  corporate  property  as  may  be  deemed 
"  conducive  to  the  interests  of  its  inhabitants." 

No  one  would  think  of  questioning  the  power  of 
the  Supervisors  of  a  county,  because  their  acts  in 
effecting  any  one  of  these  objects  would  affect  the 
class  of  persons  who  might  be  inhabitants  of  the 
county  at  some  future  period,  and  therefore  were 
"  undefined,  unknown  and  unascertainable." 

The  powers  of  the  Supervisors,  within  the  limits 
prescribed  by  the  Statute,  are  exercised  for  the  ben- 
efit of  those  who  may  be  the  inhabitants  or  tax-pay- 
ers of  the  county  at  any  period  in  the  future. 

The  present  debt  of  the  city  of  New  York,  irre- 
spective of  the  bonds  in  question,  is  not  payable 
until  years  to  come,  and  is  then  to  be  paid  by  that 
"  undefined,  unknown  and  unascertainable"  class 
who,  at  the  maturity  of  the  bonds,  may  reside  within 
the  limits  of  the  county. 

From  the  very  nature  of  things  and  the  constitu- 
tion of  society,  the  recovery  of  this  money  by  the 
Board  of  Supervisors,  and  the  payment  of  it  to  its 
County  Treasurer,  must  be  regarded  in  law,  whether 
it  results  so  in  point  of  fact  or  not,  for  the  benefit  of 
those  who,  in  the  end,  may  be  taxed  to  pay  the 
bonds  in  question. 

If  this  objection  should  obtain  in  this  and  all  other 
cases  where  it  is  equally  applicable,  the  practical 
results  would  be  that  the  wheels  of  government 
would  be  stopped. 

When  a  person  becomes  a  citizen  of  the  county  of 
New  York,  eo  insta?ita,  he  is  liable,  as  a  tax-payer, 
to  contribute  to  the  payment  of  existing  obligations, 
from  which  he  has  derived  no  advantage,  and  also  to 
provide  for  future  expenditures  when  he  may  have 
ceased  to  be  an  inhabitant. 


8 


fourth; 

answers  to  Mr.  Tilden's  argument  afi  to  the  inde- 
pendent and  paramount  powers  of  the  Attorney- 
General  of  England,  are  as  follows  : 

1.  This  action  differs  radically  and  entirely  from 
those  in  which  the  power  of  the  Attorney-General 
has  been  exercised.  Those  were  without  exception 
either  to  enforce  the  performance  of  a  trust,  or  to 
compel  the  return  of  trust  funds  to  the  custodian 
from  whom  they  had  been  diverted.  No  such  re- 
lief as  is  asked  here  has  ever  been  given  by  any 
Court  to  the  Attorney-General  of  England. 

2.  The  power  of  the  English  Crown,  through  its 
Attorney-General,  over  public  officers,  was  based 
upon  the  peculiar  character  of  English  municipal 
corporations.  On  the  other  hand  our  corporations 
are  entirely  different  in  their  character,  and  are 
controlled  directly  by  the  State,  without  the  inter- 
vention of  any  Attorney-General,  through  the 
agency  of  local  officers,  who  are  themselves,  in  the 
exercise  of  their  statutory  duties,  agents  of  the 
State  in  the  same  sense,  and  to  the  same  effect,  that 
the  Attorney-General  is. 

The  reason  of  the  power  of  the  Crown  to  exercise 
control  in  actions  by  its  Attorney-General  over  the 
administration  of  trusts  by  the  officers  of  its  muni- 
cipal corporations  is,  that  those  corporations  are  in 
England  similar  in  their  nature  to  our  private  cor- 
porations. Their  officers  are  not  the  creatures  or 
the  agents  of  the  Crown.  The  Crown  does  not  act 
tli rough  them,  and,  therefore,  the  only  means  by 
which  the  Crown  can  protect  the  citizens  affected  by 
their  acts,  is  through  bill  or  information  by  the  At- 
torney-General. That  jurisdiction  exists  here  as  to 
private  corporations,  for  the  same  reason  that  it  ex- 
sists  in  England  both  as  to  private  and  as  to  munici- 
pal corporations.  But  the  reason  does  not  exist  here 
as  to  the  political  subdivisions  of  the  State,  or  the 


9 


quasi-corporations  created  by  the  State,  for  the  pur- 
pose of  carrying  out  its  will,  or  administering  trusts 
for  the  benefit  of  the  citizens  resident  in  their  re- 
spective localities. 

These  political  sub-divisions  and  quasi  corpora- 
tions are  the  creatures  of  the  State.  The  acts  of 
their  officers  are  the  acts  of  the  State.  Actions 
brought  by  the  officers  mentioned  in  the  92d  Section 
of  Chapter  8  of  Part  3  of  the  Revised  Statutes  above 
cited,  are  as  truly  in  the  exercise  of  the  power  of  the 
State  to  protect  its  citizens,  or  redress  injuries  to 
their  interests,  as  actions  brought  by  the  Attorney- 
General  of  England  to  enforce  the  performance  of 
duties  by  the  officers  of  English  municipal  corpora- 
tions. This  remedy  being  substituted  by  our  statute 
for  that  which  exists  in  England,  there  is  no  reason 
as  well  as  no  authority  for  assuming  the  continuance 
of  the  English  rule. 


FIFTH. 

The  duty  of  protecting  the  rights  of  citizens  of  particular 
localities  within  this  State  by  appeal  to  the  Courts 
in  cases  where,  if  in  England,  the  Attorney-General 
might  interpose,  has  been  provided  and  specially 
assigned  by  statute  in  this  State,  in  part  to  desig- 
nated officers  of  the  localities  themselves,  and  in 
part  to  the  Attorney-General,  each  acting  by  virtue 
of  the  statute  quoad  hoc,  as  the  agent  of  the  State. 
By  Title  4,  Part  3,  Chap.  8,  Section  105  of  the  Re- 
vised Statutes  (Vol.  2,  page  472,  1st  Ed.,)  it  is  pro- 
vided that  "  actions  may  be  brought  by  the  Super- 
"  visors  of  a  County,  by  the  loan  officers  and  Com- 
"  missioners  of  Loans  of  a  County ;  by  County 
"Superintendents  of  the  Poor;  by  Supervisors  of 
"  Towns ;  by  Overseers  of  the  Poor  of  the  several 
"  towns ;  by  School  Commissioners  and  Commis- 
"  sioners  of  Highways  of  the  several  towns ;  by 


10 


"  Trustees  of  School  Districts,  and  by  Trustees  of 
"  Gospel  and  school  lots  *  *  *  *  to  enforce 
u  any  liability  or  any  duty  enjoined  by  law  to  such 
"  officers  and  the  body  which  they  represent 
t<  *  •*  *  *  an(j  to  recover  damages  for  anv  in- 
"  juries  done  to  the  property  or  rights  of  such  officers 
and  the  bodies  represented  by  them  f  and  it  is  pro- 
vided (1  R  S.,  page  179,  first  Ed.,  sec.  1,)  that  "  it 
"  shall  be  the  duty  of  the  Attorney- General  to  pros- 
ecute and  defend  all  actions,  in  the  event  of  which 
"  the  People  of  this  State  shall  be  interested ;"  and 
it  is  provided  by  the  Code  (Sec.  Ill),  "  every  action 
"  must  be  prosecuted  in  the  name  of  the  real  party 
"  in  interest,  except  as  otherwise  provided  by  Section 
"113,"  which  does  not  apply  in  this  case.  It  can- 
not be  maintained  that  the  People  of  the  State  have 
such  an  interest  in  the  event  of  the  action  which 
may  be  brought  by  the  Board  of  Supervisors  of  a 
County  as  to  empower  the  Attorney-General  to  bring 
such  action  in  the  name  of  the  People,  because,  if  it 
were  so,  it  would  be  the  duty  of  the  Attorney-General 
to  bring  the  action  under  the  foregoing  provision  of 
the  Revised  Statutes,  which  the  Supervisors  are 
directed  to  bring  by  the  same  statute.  No  such 
action  as  this  has  ever  been  brought  by  the  Attorney- 
General  for  this  State,  and  nothing  can  be  clearer 
than  that  no  such  action  was  ever  contemplated  in 
any  of  the  legislation  of  the  State. 

No  provision  has  ever  been  made  among  the  clear 
ly  defined  powers  of  the  Treasurer  of  the  State, 
authorizing  him  to  receive  the  money.  No  provision 
has  ever  been  made  by  which  any  officer  has  any  au- 
thority in  law  in  any  manner  whatsoever  to  apply  the 
moneys,  it*  so  recovered  and  paid  into  the  Treasury 
of  the  State,  to  the  use  or  for  the  benefit  of  the  class 
of  citizens  alleged  to  have  been  injured  by  the  acts 
complained  of.  If  such  an  action  as  this  had  been 
contemplated  for  the  redress  of  injuries  to  the  citi- 
zens or  tax  payers  of  counties,  the  law  certainly 
would  have  provided  means  by  which  the  injuries 
could  be  redressed  in  the  action. 


11 


The  sovereign  power  of  the  State  is  not  pecessa- 
rily  exerted  through  the  Attorney-General.  It  may 
adopt  different  forms  and  modes  to  accomplish  its 
purposes,  and  when  the  Legislature  determines  that 
certain  actions  shall  be  commenced  and  rights  en- 
forced, in  the  name  of  officers  known  to  the  law  in 
the  political  divisions  of  the  State,  it  is  as  much  an 
exercise  of  State  sovereignty  as  if  the  action  had 
been  commenced  in  the  name  of  the  People  of  the 
State  by  its  Attorney-General,  because  they  are  com- 
menced by  and  under  its  authority,  and  according 
to  its  mandate. 

The  power  that  enables  it  to  designate  the  names 
of  persons  or  officers  in  whom  certain  actions  shall 
be  commenced  also  enables  it  to  disqualify  itself 
from  bringing  such  actions  in  the  name  of  the  Peo- 
ple. Such  disqualification,  when  established  by  an 
act  of  the  people  through  its  Legislature,  must  con- 
tinue until  it  is  removed,  and  the  power  resumed  by 
legislative  action. 

It  matters  not  in  whose  name  the  law  requires  an 
action  to  be  commenced  on  behalf  of  a  municipal 
corporation,  provided  the  proper  object  can  be 
effected. 

The  Legislature  creates  municipal  corporations, 
and  possesses  the  power  to  determine  how  their 
rights  shall  be  prosecuted  and  their  wrongs  re- 
dressed, and  when  it»determines  that  a  County 
shall  be  represented  by  a  Board  of  Supervisors,  and 
all  actions  affecting  its  property  brought  in  the 
name  of  such  Supervisors,  it  not  only  determines 
the  party  plaintiff  to  any  action  for  that  purpose, 
but  also  deprives  the  People  of  the  right  to  bring 
it  in  their  own  name. 

This  new  and  revolutionary  doctrine,  that  there 
is  a  concurrent  and  paramount  right  in  the  State  to 
bring  actions  in  behalf  of  a  county,  notwithstanding 
the  Act  of  Legislature  providing  that  such  actions 


12 


shall  be  brought  by  the  Board  of  Supervisors  of  a 
county,  is  heard  of  for  the  first  time  in  this  State, 
or  in  this  country,  in  the  prosecution  of  this  action, 
and  is  not  to  be  received  with  favor.  The  proposi- 
tion is  wholly  unsustained  by  the  authority,  and  en- 
tirely at  war  with  the  manner  in  which  the  law  has 
been  heretofore  administered  in  this  State.  The 
political  divisions  of  the  State,  and  the  officers  who 
govern  them,  are  provided  for  by  statute.  The  du- 
ties which  they  are  to  perform,  and  the  manner  of 
prosecuting  rights  and  redressing  wrongs,  are  defined 
by  the  same  authority  :  There  is  no  casus  omissus 
which  makes  it  necessary  for  us  to  seek  for  extraor- 
dinary remedies,  or  look  to  the  common  law  of  Eng- 
land for  precedents.  The  argument  that  the  sover- 
eign powers  of  the  State  is  exerted  through  local 
municipal  officers  as  well  as  through  its  Attorney- 
General,  does  not  belittle  the  State  or  circumscribe 
its  authority. 

The  argument  of  Mr.  Tilden  seems  to  be  predicated 
of  the  belief  that  we  are  attacking  in  some  way  the 
jurisdiction  of  the  Court  to  maintain  this  action. 

Such  a  question  has  never  been  raised  or  even 
suggested  in  this  case  on  behalf  of  the  defendant. 
The  distinction  between  the  jurisdiction  of  the  Court 
and  the  right  of  the  People  to  maintain  an  action  in 
the  Court  is  too  apparent. 

Mr.  Tilden,  in  reviewing  the  cases  of  Doolittle  vs. 
The  Board  of  Supervisors  of  Broome  County,  Roose- 
velt vs.  Draper,  and  Wetruore  vs.  Story,  w  here  the 
right  to  maintain  an  action  was  denied  the  individual 
tax-holder,  asserts  that  the  denial  of  such  right  of 
action  in  the  tax-payer  is  equivalent  to  an  assertion 
of  a  right  of  action  in  the  People  by  the  Attorney- 
General.  He  says,  that  the  tax  payer,  stripped  of  a 
right  of  action  in  his  own  name,  on  behalf  of  him- 
self and  associates,  is  relegated  to  a  condition  of 
helplessness  which  calls  for  the  interposition  of  the 
sovereign  as  parens  patriae. 


13 


This  proves  nothing  so  far  as  this  case  is  con- 
cerned. Because  a  tax-payer  has  no  authority,  either 
by  statute  or  common  law,  to  bring  an  action  to 
redress  a  wrong  to  a  whole  community,  of  which 
he  forms  but  a  small  part,  and  where  he  sustains 
no  injury  which  is  not  common  to  all,  falls  far  short 
of  proving  that  the  Board  of  Supervisors  of 
a  County,  who  are  authorized  by  statute  to 
maintain  an  action,  cannot  redress  a  wrong  against 
the  County.  The  question  here  is  not  whether  there 
is  no  one  to  sue  because  tax-payers  cannot,  but  it  is 
whether  the  officers  of  a  county  shall  exercise  the 
power  conferred  upon  them  by  law. 

It  will  hardly  be  contended  that  should  the  Leg- 
islature now  pass  an  act  authorizing  the  tax-payer 
to  maintain  the  action  (which  was  denied  to  him  in 
the  cases  referred  to),  that  still  the  exercise  of  such 
authority  would  be  regarded  as  concurrent  with  the 
People  of  this  State. 

4.  Mr.  Tilden's  argument  proves  too  much  or  noth- 
ing. If  it  be  true,  then  the  Attorney-General  has  a 
supervisory  power  over  the  administration  of  all  lo- 
cal offices  in  all  counties  and  municipal  corporations 
throughout  the  State.  If  the  Treasurer  of  the 
County  of  Erie,  or  Oneida,  or  Columbia,  pays 
out  money  in  excess  of  his  authority,  the 
Attorney-General  may  recover  it  into  the 
Treasury  of  the  State.  If  he  refuses  to 
pay  out  money  in  the  performance  of  his  duty, 
the  Attorney-General  can  compel  him  to  do  so 
Nor  is  it  easy  to  see  why  the  commission  of  a  wrong 
is  essential,  as  a  condition,  under  this  theory,  to  the 
State  obtaining  the  money  hitherto  supposed  to  be- 
long to  its  Counties,  or  why  all  moneys  in  all  Coun- 
ties throughout  the  State  may  not  upon  the  same 
reasoning  be  gathered  into  the  State  Treasury,  and 
managed  and  disbursed  under  the  parental  direction 
of  the  Attorney-General. 

WILLIAM  FULLERTOK 
ELIHU  ROOT, 

Of  Counsel, 


lEx  ICtbrtfi 


SEYMOUR  DURST 


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